What evidence can be used against me with domestic assault charges?
After police receive a call about an alleged domestic assault, the accused is usually taken away in handcuffs as officers gather evidence. The main types of evidence include testimony from those in the home, photographs, videos and medical records. Each has shortcomings, which a skilled defence attorney like myself can bring to the attention of the court.
The court often has to decide who to believe
Witness statements can be from the complainant, the accused, neighbours, family members, or anyone else who heard or saw the alleged domestic incident. In many cases, the complainant and the accused were alone when the alleged incident occurred, leaving the court left to weigh which “he said/she said” testimony has the most credibility. As your defence attorney, I will look and listen for inconsistencies, especially if what the complainant told the police at the time of the arrest differs from the testimony they give in court.
It is not uncommon for complainants to fabricate an incident or exaggerate the severity of what happened. As your lawyer, I will raise issues about the accuser’s credibility if that is warranted and expose any exaggerations and omissions to the court. My ability to find inconsistencies in testimony is important, as that will show the court that the witness is simply not reliable.
Photographs do not always tell the full story
Visible injuries on both the complainant and accused will be photographed by police. If the complainant has a black eye or bruises, that could indicate they were assaulted. But some claims about domestic assault are often not made until weeks after the incident. If the alleged victim has photos that show injuries, can they prove when those photos were taken? And some people exaggerate an injury, using makeup and low lighting to make it seem worse. In every case, it is up to the crown to prove that you caused harm to the other person.
Video evidence can work both ways
Many people have video cameras in their homes, even on their doorbells. If you are accused of entering someone’s home and assaulting them, your actions, or at least entry to the home, may be captured on video. Conversely, if you are unjustly accused of assault, an in-home video camera will show that you did nothing wrong in your interactions with others. And if you were not even there at the time of the alleged incident but were instead out shopping, a video from a store’s camera may bolster your defence.
Medical reports can be biased
If someone is brought to the hospital after a physical or sexual assault, there will be records by medical professionals such as nurses, doctors, lab technicians and paramedics. These can be introduced at trial to back up the statements of the complainant, subject to certain evidentiary issues. Yet these records will not tell the whole story. A study by the British Columbia’s Women’s Hospital and Health Centre found that “health professionals do not always accurately record what they are told. They may be influenced by assumptions, including gendered and racial assumptions, about violence against women. As a result, the objectivity, relevance, or non-prejudicial nature of records within the health sector should not be taken for granted.”
It should be noted that medical records can be used in the accused’s favour, especially in cases where it can be shown the complainant has a history of psychiatric problems or drug use. Such records will undermine their credibility and allegations of abuse.
The accused is always presumed innocent
In any Canadian criminal trial, the crown has the burden to prove that the defendant is guilty beyond a reasonable doubt. If not, the judge/jury must acquit them, as it is not up to the defendant or their lawyer to prove innocence.
The Supreme Court of Canada has said it is not necessary that the jury believe the defendant’s evidence to acquit them, in a landmark ruling.
“First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
Men can be victims
According to a Calgary media report, Statistics Canada states that around “80 per cent of the intimate partner violence (IVP) victims in police-reported incidents are women. However, according to their own report Family Violence in Canada: A statistical profile, men self-reported to have been abused by their partners at a higher rate than women – with 4.2 per cent of men and 3.5 per cent of women being victims. These two reports raise interesting questions about how and when to use them.”
The news story states, “The bulk of crimes within the family are never known to the police. That explains this lack of any consistency between the numbers.” The report adds. “Beyond not being believed by law enforcement several of these men were the ones taken into custody, even if they have evidence that they were the victim.”
A 2014 Canadian Centre for Justice Statistics survey concluded that “equal proportions of men and women reported being victims of spousal violence during the preceding 5 years (4% respectively).”
There are false accusations of abuse
Judges have recognized the danger posed by false allegations of domestic abuse. In a 2017 case, the judgment reads: “To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.”
Let me find flaws with the crown’s evidence
The type of evidence the crown has against the accused varies from case to case. As a seasoned defence lawyer, I can sift through that material and find gaps and omissions, raising doubt in the court’s mind. Contact Susan Karpa, Calgary defence lawyer for a free consultation.